S250 1R

An Act concerning the housing rights of persons with criminal records and supplementing P.L.1945, c.169 (C.10:5-1 et seq.).

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. This act shall be known and may be cited as the “Fair Chance in Housing Act.”

¹2. The Legislature finds and declares that:

a. Recent research indicates that New Jersey suffers from a tragically high 36-month recidivism rate of over 30 percent;

b. Housing instability appears to impact recidivism, considering that over one in 10 prisoners in the United States face homelessness upon release;

c. Research from other states indicates a substantial increase in the likelihood of a parolee’s arrest following each change in address, further supporting the conclusion that when ex-convicts are unable to find stable housing, recidivism becomes more likely and public safety is diminished;

d. Prior to the 1990s when popular guidance documents began advising landlords to conduct criminal background checks on prospective tenants, criminal background information was not widely-available and convenient to landlords for informing rental decisions, but many landlords were nonetheless able to maintain safe and healthy rental properties; and

e. It is, therefore, necessary and in the public interest for the Legislature to enact legislation to supplement the “Law Against Discrimination,” P.L.1945, c.169 (C.10:5-1 et seq.), for the purpose of establishing certain housing rights of persons with criminal records.¹

¹[2.] 3.¹ As used in this act:

"Applicant" means any person considered for, who requests to be considered for, or who requests to be considered for tenancy within a rental dwelling unit.

“Conditional offer” means an offer to rent or lease a rental dwelling unit to an applicant that is contingent on a subsequent inquiry into the applicant’s criminal record, or any other eligibility criteria that the housing provider may lawfully utilize.

“Criminal record” means information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, or other formal criminal charges, and any disposition arising therefrom, including acquittal, sentencing, correctional supervision,

release or conviction, including, but not limited to, any sentence arising from a verdict or plea of guilty or nolo contendere, including a sentence of incarceration, a suspended sentence, a sentence of probation, or a sentence of conditional discharge.

“Housing provider” means a landlord, an owner, lessor, sublessor, assignee, or their agent, or any other person receiving or entitled to receive rents or benefits for the use or occupancy of any rental dwelling unit.

“Pending criminal accusation” means an existing accusation that an individual has committed a crime, lodged by a law enforcement agency through an indictment, information, complaint, or other formal charge.

“Rental dwelling unit” means a dwelling unit offered for rent by a housing provider for residential purposes, other than a dwelling unit in an owner-occupied premises of not more than three dwelling units.

¹[3.] 4.¹ a. (1) A housing provider shall not require an applicant to complete any housing application that includes any inquiries regarding an applicant’s criminal record prior to the provision of a conditional offer ¹, except that a housing provider may consider whether an applicant has ever been convicted of drug-related criminal activity for the manufacture or production of methamphetamine on the premises of federally assisted housing, and whether the applicant is subject to a lifetime registration requirement under a State sex offender registration program¹.

(2) A housing provider shall not make any oral or written inquiry regarding an applicant’s criminal record prior to making a conditional offer.

(3) An applicant may provide evidence to the housing provider demonstrating inaccuracies within the applicant's criminal record or evidence of rehabilitation or other mitigating factors.

b. ¹[Notwithstanding the provisions of subsection a. of this section, if an applicant discloses any information regarding the applicant’s criminal record, by voluntary oral or written disclosure, prior to the conditional offer, the housing provider may make inquiries regarding the applicant’s criminal record prior to making the conditional offer.

c.]¹ Prior to accepting any application fee, a housing provider shall disclose in writing to the applicant:

(1) Whether the eligibility criteria of the housing provider include the review and consideration of criminal history; and

(2) A statement that the applicant, pursuant to subsection a. of this section, may provide evidence demonstrating inaccuracies within the applicant's criminal record or evidence of rehabilitation or other mitigating factors.

¹[d.] c. A housing provider shall not, either before or after the issuance of a conditional offer, evaluate an applicant based on any of the following types of criminal records:

(1) arrests or charges that have not resulted in a criminal conviction;

(2) expunged convictions;

(3) convictions on appeal;

(4) vacated and otherwise legally nullified convictions;

(5) juvenile adjudications of delinquency;

(6) records that have been sealed; and

(7) criminal convictions arising for conduct committed outside of the State that, if committed within the State, would not constitute an indictable offense.

d.¹ After the issuance of a conditional offer to an applicant, a housing provider may only consider a criminal record in the applicant’s history that:

(1) ¹[has occurred within] resulted in a conviction that was issued within, or if the conviction resulted in a prison sentence that sentence concluded within,¹ the ¹[10] three¹ years immediately preceding the issuance of the conditional offer ; and

(2) consists of a ¹[pending criminal accusation or a]¹ criminal conviction that, pursuant to subsection b. of N.J.S.2C:52-2, is not eligible for expungement.

e. ¹[(1)]¹ A housing provider may withdraw a conditional offer based on an applicant's criminal record only if the housing provider determines, ¹[on balance] by clear and convincing evidence¹, that the withdrawal ¹[achieves a substantial, legitimate, nondiscriminatory interest. (2)] is necessary, because the applicant’s criminal conduct renders the applicant unfit for the housing arrangement applied for.¹ The housing provider's determination of ¹[a nondiscriminatory interest] unfitness for housing¹ shall be reasonable in light of the following factors:

¹[(a)] (1)¹ The nature and severity of the criminal offense;

¹[(b)] (2)¹The age of the applicant at the time of the occurrence of the criminal offense;

¹[(c)] (3)¹ The time which has elapsed since the occurrence of the criminal offense;

¹[(d)] (4)¹ Any information produced by the applicant, or produced on the applicant's behalf, in regard to the applicant's rehabilitation and good conduct since the occurrence of the criminal offense;

¹[(e)] (5)¹ The degree to which the criminal offense, if it reoccurred, would negatively impact the safety of the housing provider's other tenants or property; ¹[and

(f)] (6)¹ Whether the criminal offense occurred on or was connected to property that was rented or leased by the applicant ¹;

(7) Whether the offense arose from an applicant’s status as a survivor of domestic violence, sexual assault, stalking or dating violence;

(8) Whether the offense arose from an applicant’s mental illness or other disability; and

(9) If the applicant was under the influence of alcohol or illegal drugs at the time of the offense, whether the applicant is in recovery, or has recovered and rehabilitated, from the associated addiction. Evidence of recovery and rehabilitation shall include, at a minimum:

(a) the satisfactory compliance of an applicant with the terms and conditions of parole or probation, provided that the failure of the person to pay fines, fees, and restitution shall not be considered noncompliance with terms and conditions of parole or probation;

(b) educational attainment or vocational or professional training, or employment since conviction, including training received or employment while incarcerated;

(d) letters of recommendation from community organizations, counselors, case managers, teachers, faith leaders, community leaders, parole officers, and probation officers who have observed the applicant¹.

f. ¹[(1)]¹ If a housing provider withdraws a conditional offer, the housing provider shall provide the applicant ¹, free of charge,¹ with ¹a¹ written notification that includes, with specificity ¹[,] :

(1) an explanation of what was concluded on each of the factors considered pursuant to subsection f. of this section;

(2)¹ the reason or reasons for the withdrawal of the conditional offer ¹[and] ;

(3) a copy of the criminal records and other information that the housing provider relied on to inform the decision;

(4)¹ a notice ¹, in both English and Spanish,¹ that advises the applicant of the applicant's right to file a complaint with the Attorney General pursuant to section ¹[6 of this act] 9 of P.L. , c. (C. ) (pending before the Legislature as this bill); and

(5) a written offer, provided in Spanish, to provide the applicant with the explanations required pursuant to paragraphs (1) and (2) of this subsection in Spanish, if that is the applicant’s primary language¹.

¹[(2) (a) The applicant may request, within 20 days after the housing provider's notice of the withdrawal, that the housing provider afford the applicant a copy of all information that the housing provider relied upon in considering the applicant, including criminal records.

(b) A housing provider shall provide the information requested under subparagraph (a) of this paragraph, free of charge, within l0 days after receipt of a timely request.

g. Nothing set forth in this act shall be construed to prohibit a housing provider from requiring an applicant to complete a housing application that includes any inquiries regarding an applicant’s criminal record after the conditional offer is provided or from making any oral or written inquiries regarding an applicant’s criminal record after the conditional offer is provided. The provisions of this section shall not preclude a housing provider from refusing to provide housing to an applicant based upon the applicant’s criminal record, unless the criminal record or relevant portion thereof has been expunged or erased through executive pardon, provided that such refusal is consistent with other applicable laws, rules and regulations] g. A housing provider shall apply the standards established by this section to each applicant in a nondiscriminatory manner¹.

¹[4. Unless otherwise permitted or required by law, a] 5. a. A¹ housing provider shall not knowingly or purposefully publish, or cause to be published, any housing advertisement that explicitly provides that the housing provider will not consider any applicant who has been arrested or convicted of one or more crimes or offenses ¹, except for drug-related criminal activity for the manufacture or production of methamphetamine on the premises of federally assisted housing, and whether the applicant is subject to a lifetime registration requirement under a State sex offender registration program.

b. Unless otherwise required by law, a housing provider shall not:

(1) distribute or disseminate an applicant’s criminal record to any person who is not expected to use the criminal record for the purpose of evaluating the applicant in a manner consistent with P.L. c. , (C. ) (pending before the Legislature as this bill); or

(2) use an applicant’s criminal record for a purpose that is not consistent with P.L. c. , (C. ) (pending before the Legislature as this bill)¹.

¹[5. This act shall not apply:

a. If a federal law or regulation requires the housing provider to consider an applicant’s criminal records for residential leasing purposes; or

b. If a federal law or regulation otherwise allows for the denial of an applicant due to certain criminal convictions.]¹

¹6. A housing provider shall not require an applicant to submit to a drug or alcohol test, or request the applicant’s consent to obtain information from a drug abuse treatment facility.¹

¹7. A person shall not interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under P.L. , c. (C. ) (pending before the Legislature as this bill). It shall be a rebuttable presumption of unlawful retaliation if a housing provider or any other person takes an adverse action against a person within 90 days of the person’s exercise of the rights protected in P.L. , c. (C. ) (pending before the Legislature as this bill). This rebuttable presumption shall be sufficient to establish unlawful retaliation, unless the housing provider or other person is able to demonstrate that the action would have been taken in the absence of such protected activity.¹

¹8. The Division on Civil Rights shall maintain data on the number of complaints filed pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), demographic information on the complaints, the identity of the housing providers, the number of investigations conducted, and the disposition of every complaint and investigation, which shall be published and posted online annually.¹

¹[6.] 9.¹ a. A person claiming to be aggrieved pursuant to this act may file a complaint or action with the Division on Civil Rights or in the Superior Court of New Jersey alleging a violation of the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.).

b. Any housing provider who violates this act shall be liable for a civil penalty in an amount not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation collectible by the Attorney General in a summary proceeding pursuant to the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.).

¹[7.] 10.¹ In accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), the Attorney General ¹[may] shall¹ adopt the rules and regulations necessary to effectuate the purposes of ¹[this act] P.L. c. , (C. ) (pending before the Legislature as this bill) on or before the first day of the fifth month next following enactment¹.

¹[8.] 11.¹ This act shall take effect on the first day of the seventh month next following the date of enactment, but the Attorney General may take any anticipatory administrative action in advance as shall be necessary for the implementation of this act.